There are two main forms of custody, physical and legal:

Physical custody is the actual physical possession and control of a child under 18 years old. It refers to the person with whom the child lives, either all of the time or part of the time. Sole physical custody is when one parent alone has physical custody and shared physical custody is both parents share physical custody, with each parent having significant periods of time with the child. Custody can also be divided into primary, when one parent has the child for the majority of the time, and partial, when one parent has the child for less than a majority of the time. Physical custody can also be supervised, when an agency or another adult monitors the interaction between the parent and child.¹

Legal custody is the right to make major decisions about the child, which typically include educational, religious, and medical decisions. Legal custody can be sole, given to one parent alone, or shared.¹

¹ 23 Pa.C.S. § 5322(a)

If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for visitation or custody, you may not have much to lose by asking that the visits be supervised.

However, if there is no current court case, please get legal advice before you start a court case to ask for supervised visits. We strongly suggest that you talk to an attorney specializing in custody cases to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.

In the great majority of cases, supervised visits are only a temporary measure. Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a few visits or the visits might be supervised by a relative for a few months. If there are no obvious problems, the visits will likely become unsupervised. Often, the other parent ends up with more frequent and longer visits than before you went into court. The abuser may even end up with joint custody.

In some cases, though, starting a case to ask for custody and supervised visits is appropriate to protect your child from immediate danger by the abuser. To find out if that is best in your situation, please go to PA Finding a Lawyer to seek out legal advice.

The judge will make a custody order that s/he feels is in the best interest of the child after considering many factors.¹ The following people may file for any form of physical custody or legal custody:

1. a parent of the child;
2. a person who stands in loco parentis (in place of the parent) to the child (Note: Non-parents with in loco parentis status will generally have performed the duties that a parent usually performs - such as being the primary caretaker - for a significant period of time);²
3. a grandparent of the child who is not in loco parentis to the child but:
   • whose relationship with the child began either with the consent of a parent of the child or under a court order;
   • who assumes or is willing to assume responsibility for the child; and
   • when one of the following conditions is met:
     • the child has been determined to be a “dependent child” under 42 Pa.C.S. Ch. 63 (relating to juvenile matters);
     • the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity; or
     • the child has, for a period of at least 12 months in a row, resided with the grandparent (not counting any brief temporary absences of the child from the home), and was then removed from the home by the parents – in this case, the custody petition must be filed within six months after the child is removed from the grandparent’s home;

4. only in a situation where neither parent has any form of care and control of the child, anyone can apply if s/he:

   • has assumed or is willing to assume responsibility for the child; and

   • has a constant (sustained), substantial, and sincere interest in the welfare of the child. To evaluate this, the judge can consider factors such as the nature, quality, extent, and length of the involvement that this person has had in the child’s life.³

Also, grandparents and great-grandparents may file for partial physical custody or supervised physical custody even if they don’t meet the requirements above. For more information, go to I am the child’s grandparent or great-grandparent. Can I get custody or visitation?

¹ 23 Pa.C.S. § 5323(a)
² 23 Pa.C.S. § 5324; see, for example, T.B. v. L.R.M., 567 Pa. 222, 786 A.2d 913 (2001); S.A. v. C.G.R., 856 A.2d 1248 (2004)
³ 23 Pa.C.S. § 5324

If a person is convicted of any of the following sexual offenses that resulted in the child being conceived, the judge cannot give that offender-parent any type of custody:

• rape;
• sexual assault;
• statutory sexual assault;
• Institutional sexual assault; or
• incest.¹

The only exception to this is if all of the following are true:

1. the other parent of the child asks that the offender-parent be given some form of custody;
2. the child is of suitable age and consents to the custody order; and
3. the judge determines that custody would be in the best interest of the child.²

In addition, if you are the mother of a child conceived as a result of rape or incest, you have the option of filing a termination of parental rights petition against the offender-father.³

¹ 23 Pa.C.S. § 5329(b.1)(1)
² 23 Pa.C.S. § 5329(b.1)(2)
³ 23 Pa.C.S. §§ 2511(a)(7); 2512(a)(1)

Anyone, including grandparents or great-grandparents, can file for any form of custody if they meet the requirements in Who is entitled to seek custody?

Grandparents and great-grandparents can also file for visitation.¹ Under Pennsylvania law, visitation may refer to partial physical custody, shared physical custody, or supervised physical custody.²

Grandparents or great-grandparents can file for visitation if:

1. the child’s parent died and the grandparent or great-parent filing for visitation was related to the parent who died;
2. the child:
   
   • lived with the grandparent or great-grandparent for at least 12 months in a row not counting any brief temporary absences of the child from the home; and
   • was removed from that home by a parent. If this is the reason for filing, the grandparent or great-grandparent must file for visitation within six months after the child is removed from his/her home; or
3. the child’s relationship with the grandparent or great-grandparent began with a parent’s consent or because of a court order, and now the parents of the child:
   
   • have filed a custody proceeding in court; and
   • do not agree about the grandparent or great-grandparent having visitation.¹

In ordering visitation, the judge should consider the following:

• the amount of personal contact between the child and the grandparent or great-grandparent before s/he filed the visitation petition (except in situation #2 above);
• whether giving the grandparent or great-grandparent visitation would interfere with any parent-child relationship; and
• whether it is in the best interest of the child.³

¹ 23 Pa.C.S. § 5325
² 23 Pa.C.S. § 5322(b)
³ 23 Pa.C.S. § 5328(c)

The judge will decide about custody based on what s/he believes is in the best interest of the child. This is determined on a case-by-case basis. The judge will look at all of the following factors to come up with the custody arrangement that s/he thinks is in the best interest of your child:

1. which party is more likely to ensure the child’s safety;
2. the present and past abuse committed by a party or a member of the party’s household, such as a new spouse - this may include past or current protection orders that include a finding of abuse;¹
3. any involvement with a criminal child abuse case or with child protective services, including:
   
   • if the child was the subject of an “indicated” or “founded” report of child abuse;
   • if either party or a person living with either party committed the child abuse in that report;
   • details about the abuse and where the investigation took place; and
   • whether a party or a member of his/her household received protective services and if so, the details of those services;²
4. any violent behavior or assaults by either party;
5. which party is more likely to encourage and allow frequent and continuing contact between the child and another party as long as it’s safe for the child;
6. the parental duties performed by each party for the child;
7. the need for stability and continuity in the child’s education, family life, and community life, unless a change is needed to protect the safety of the child or a parent;
8. the availability of extended family;
9. the child’s relationship with any sibling(s);
10. the child’s preference considering his/her developmental stage, maturity, and judgment;
11. the attempts of a party to turn the child against the other party, except in cases of abuse where reasonable safety measures are necessary to protect the child from harm;
12. which party is more likely to maintain a loving, stable, consistent, and nurturing relationship with the child to meet the child’s emotional needs;
13. which party is more likely to attend to the daily physical, emotional, developmental, educational, and special needs of the child;
14. how close the homes of the parties are;
15. each party’s availability to care for the child or ability to make appropriate child-care arrangements;
16. the level of conflict between the parties and how willing and able they are to cooperate with one another;
17. the history of drug or alcohol abuse by a party or a member of a party’s household;
18. the mental and physical condition of a party or a member of a party’s household; and
19. any other relevant factor.¹

The judge must give heavy (substantial) consideration to the factors about the child’s safety listed in #1-4 above. For #11 above, the judge cannot consider a party’s reasonable worry about the child’s safety and reasonable efforts to protect the child as trying to turn the child against the other party. Also, the judge cannot assume that one party caused the child’s negative relationship with the other party. For #16 above, a party’s effort to protect the child or him/herself from abuse by the other party is not evidence of unwillingness or inability to cooperate with that party.¹  

¹ 23 Pa.C.S. § 5328(a)
² 23 Pa.C.S. § 5329.1(a)

No, you do not need a lawyer to file for custody.  However, to prepare and present your best case, it is recommended that you have a lawyer represent you.  The information we provide here should get you started and help you with basic questions you might have.  However, custody issues are complicated and the assistance of an attorney can be helpful.  For a list of legal resources, please see our PA Finding a Lawyer page.

If you are going to be in court without a lawyer, our Preparing for Court – By Yourself section may be useful to you.

A person who has the right to file for custody in Pennsylvania may be able to get an interim (temporary) custody order for physical custody, legal custody, partial physical custody, or supervised physical custody.¹ The procedures for getting emergency custody may vary from county to county.

If you recently came to Pennsylvania from another state (and Pennsylvania is not the child’s home state), a judge may grant you temporary emergency custody if it is necessary in an emergency to protect the child because the child or a sibling or parent of the child is subjected to or threatened with mistreatment or abuse.² Such a temporary order usually lasts for an amount of time that a judge believes would be enough to allow you to go back to the child’s home state to file an appropriate custody petition there.³

It is generally best to seek the advice of an experienced custody lawyer if you believe that circumstances in your case need the court’s immediate intervention.

¹ 23 Pa.C.S. § 5323(b)
² 23 Pa.C.S. § 5424(a)
³ 23 Pa.C.S. § 5424(b)

Learn about what types of custody are available and how domestic violence might affect custody in your state. Think about what you will ask for, what would be best for your child, and what would be safest for both of you.  

You can prepare for court by gathering evidence that helps explain why you should have custody. Your evidence should relate to the “best interest factors” that a judge looks at to determine what’s best for your child. You can see How will a judge make a decision about custody? for more information.

Custody cases are complicated, so you may want to get a lawyer. If you can hire someone, you can use this list of questions as your guide when deciding which lawyer to choose. If you can’t hire a lawyer, you may at least want to try getting a free or low-cost consultation to help you make a legal strategy for your case.

The next step in the custody process is to have “preliminary” court dates. Preliminary means introductory or preparatory. These might have a different name in your state, such as “first appearance,” “status conference,” or something else. They are when certain issues can be dealt with in the early stages of the case. Some of the issues that might be dealt with are:

• problems with service of process;
• referrals to mediation;
• temporary custody and visitation orders; and
• pretrial motions.

During this stage, the judge will often give temporary custody and visitation orders that last while the case continues. In some cases, the judge may assign a guardian ad litem or an attorney for the child.

For more information to help you prepare for the preliminary court dates, go to The first appearance in our Before the Trial section. 

If you disagree with the judge’s order, there are a couple of legal actions you would need to file right away, such as a motion for reconsideration or an appeal.

• A motion for reconsideration asks the judge to decide differently based on the law or new evidence.
• An appeal moves the case to a higher court and asks that court to review the lower court’s decision due to a judge’s error.

Each state has a set time limit to file these actions, usually ranging from 10 to 60 days. To know your case’s exact timeframe, you should ask an attorney in your state.  

You might also be able to ask the judge to change your order in the future if there is a “substantial change of circumstances” after the case is decided. You can do this by filing a motion or petition to change (modify) the order. However, usually, this can only be filed under certain circumstances. Here are a few examples of events that might be considered substantial changes in circumstances:

• The other parent gets sent to jail or charged with child abuse or neglect;
• The other parent is not following the custody and visitation order; or
• Your child’s needs change in a big way.

If a custody order is already in place, either party can ask the judge to change it by filing a petition for a modification of custody.¹ To change (modify) a custody order, you will need to go to the court that gave you the order, even if you have moved.  Generally, once a court has heard a case, that court will keep the case, even if you move to another state.  If you have moved, you can ask the judge to transfer the case (change the jurisdiction) to the new state that you are in although this is often hard to do, especially if the other parent disagrees.  See Can I change the state where my case is being heard? for more information about transferring a case to another state.

If you would like to change a custody order because of military deployment, see The effect of military deployment on custody/visitation for more information.

Modifying a custody order or changing the jurisdiction is often complicated and, as with all custody issues, we recommend that you talk to a lawyer about this.  Go to our PA Finding a Lawyer page to find someone who can help you.

¹ 23 Pa.C.S. § 5338

If your move will significantly harm (impair) the other parent’s ability to use his/her custody rights, this is considered a relocation. You can only relocate if:

• everyone with custody rights to your child agrees; or
• the judge approves it.¹

If you are planning to move, you must follow the rules listed in How do I tell the other parent that I want to move?

Unlike some other states, Pennsylvania’s relocation law does not say it only applies to someone moving out of the state or a certain distance away.² It is generally recommended that you consult with a Pennsylvania custody lawyer to check if your planned move would be considered a relocation that would require you to follow these rules. To find lawyers in your area, go to PA Finding a Lawyer.

¹ 23 Pa.C.S. §§ 5322(a); 5337(b)
² See 23 Pa.C.S. § 5337(a)

If you don’t follow the notice rules listed in How do I tell the other parent that I want to move?, the judge might hold this against you when deciding whether or not to:

1. allow you to relocate;
2. change your or the other parent’s custody rights;
3. order you to return your child to the non-relocating parent if you already moved without reasonable notice;
4. make you pay for the other parent’s reasonable costs and legal fees to object to the relocation in court; or
5. issue an order of contempt and penalties (sanctions) against you.¹

However, the judge will also consider if the reason you didn’t give notice was because of abuse. If so, the judge should “ease up” on you when considering which of the above should apply in your case.²

¹ 23 Pa.C.S. § 5337(j)
² 23 Pa.C.S. § 5337(k)

To decide if you can move with your child, the judge will look at the following factors and give “heavy consideration” to the ones about your child’s safety:

1. the nature, quality, amount of involvement, and length of your child’s relationships with you, the non-relocating parent, any siblings, and other significant people in your child’s life;
2. your child’s age, developmental stage, and needs, including any special needs, and the likely impact the move will have on his/her physical, educational, and emotional development;
3. whether it’s possible to keep the relationship between your child and the non-relocating parent through appropriate custody arrangements, considering the locations and financial circumstances of both parents;
4. your child’s preference in light of his/her age and maturity;
5. whether either parent has a pattern of helping or harming the child’s relationship with the other parent;
6. whether the move will improve your and your child’s quality of life financially, emotionally, educationally, etc.;
7. your reasons and motivation for seeking the move;
8. the other parent’s reasons and motivation for opposing it;
9. any present and past abuse committed by a parent or someone in the parent’s household and if there is a continued risk of harm to your child or you; and
10. any other factor that affects your child’s best interest.¹

At the hearing, you have to prove to the judge that relocation is in your child’s best interest and that you have a good motive for moving. The non-relocating parent has to prove that s/he has a good motive for objecting.²

¹ 23 Pa.C.S. § 5337(h)
² 23 Pa.C.S. § 5337(i)

The court cannot change a custody order while one parent is absent due to military duty (deployment).¹ If the parent who is not on military duty files a petition to change custody, the court is not permitted to modify or amend the custody order that was in effect on the date of deployment. However, if it is in the child’s best interest, the court is permitted to enter a temporary custody order while the parent is deployed.¹

¹ 51 Pa.C.S. § 4109(a)

If a temporary order is issued during a parent’s military duty, the judge will reinstate the original custody order that was in effect before the parent’s deployment once the deployed parent returns.¹

¹ 51 Pa.C.S. § 4109(b)

Under normal circumstances, if a respondent doesn’t appear in court to answer a petition to modify a custody order, the petitioner may be able to get an order based on that parent’s default. However, a person’s failure to appear in court due to deployment is not a sufficient reason to change a custody order in that person’s absence.¹

¹ 51 Pa.C.S. § 4109(d)